JUDGMENT Ms. Anita Chaudhry, J.: - The petitioners have filed this petition under Section 482 Cr.P.C. seeking quashing of the complaint filed under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act) and all the subsequent proceedings arising therefrom. 2. Few facts first, M/s. Bibby Financial Services India Pvt. Ltd. filed a complaint under the N.I. Act pleading that the complainant company had granted factorying facility to M/s. Ramsarup Industries Ltd. and accordingly M/s Ramsarup Industries vide letter dated 09.11.2009 had intimated M/s. S.S.S. Loha Marketing Company about the agreement with the complainant company. Accused no.1 vide letter dated 19.11.2009, assured the complainant company that they shall be making all payments in respect of the sale invoices raised by M/s Ramsarup Industries as per their agreement. They further assured in their letter that they would be making all the payments in respect of the outstanding invoices amounting to Rs.4,00,06,655.52/-. Accused nos.1 to 4 in discharge of the above said debt and existing liability towards the complainant company issued a cheque drawn on Bank of Baroda in the name of complainant. The complainant deposited cheque No.562949 dated 23.02.2010 for the above amount with their banker M/s. Indus Ind Bank, Gurgaon for realization. The cheque was returned with the remarks that the funds were not sufficient. The complainant company through their counsel called upon the accused to make the payment. 3. It was averred that accused nos.2 to 4 were the managing director/directors/authorized signatories of M/s S.S.S. Loha Marketing Pvt. Ltd. and they were responsible for day-to-day act, conduct and affairs of the business as well as the liabilities of accused no.1. A notice was sent through Regd. A.D. The payment was not made. The accused, however, sent a reply dated 03.06.2010 raising pleas that the cheque in question was a security cheque and it was not issued in discharge of any liability. The complainant’s plea further was that vide letter dated 19.11.2009, the complainant company had already acknowledged that they had issued the cheque for payment of this amount and the accused persons in order to avoid the outstanding payment had cooked up a fictitious story. 4. The trial Magistrate summoned all the accused persons vide its order dated 15.06.2010. 5. The complainant’s plea further was that vide letter dated 19.11.2009, the complainant company had already acknowledged that they had issued the cheque for payment of this amount and the accused persons in order to avoid the outstanding payment had cooked up a fictitious story. 4. The trial Magistrate summoned all the accused persons vide its order dated 15.06.2010. 5. The petitioners approached this Court with this petition pleading that respondent no.2 with an ulterior motive and to enrich itself without informing anyone had presented the cheque. It was pleaded that the cheque was given as security against the debt and liability of M/s. Ramsarup Industries and respondent no.2 without any instructions or information to Ramsarup Industries had presented the cheque. It was pleaded that they had received the purported demand notice only on 01.06.2010 and the complainant had approached the Court without waiting for the mandatory period of 15 days and the Magistrate had taken cognizance before the expiry of the statutory period and no case was made out. It was pleaded that to launch prosecution against the directors, there should have been specific allegations and unambiguous allegation had been made without pleading how the directors were incharge or responsible for the conduct of the business of the company and the complaint was not maintainable. A plea was taken that the requirement of Section 202 Cr.P.C. had not been made and it was obligatory upon the Magistrate as the petitioners were residing beyond its jurisdiction. It was pleaded that the continuation of the proceedings was an abuse of the process of law and the complaint and the subsequent proceedings should be quashed. 6. I have heard the submissions of both the sides. 7. The counsel for the petitioners had raised the following arguments. i) The cheque was given towards security and no complaint under Section 138 of the N.I. Act was maintainable; ii) The requirement of Section 202 Cr.P.C. had not been met, but subsequently this ground was given up; iii) The complaint had been filed before the expiry of 15 days and was pre-mature; iv) There was no specific allegations how the directors were responsible for the functioning and financial decisions of the company; v) No reasoned order was passed by the Magistrate. Subsequently this ground was also given up. vi) Statement made in the Court was under threat & coercion and not binding upon the petitioners. Subsequently this ground was also given up. vi) Statement made in the Court was under threat & coercion and not binding upon the petitioners. To support the contentions, the counsel had referred to Yogendra Pratap Singh Vs. Savitri Pandey & Anr., [2012(3) Law Herald (SC) 1784] : JT 2012(4) SC 365, Vijay D. Salvi Vs. State of Maharashtra and others, [2007(4) Law Herald (SC) 2864] : (2007) 5 SCC 471, P.R. Deshpande Vs. Maruti Balaram Haibatti (1998) 6 SCC 507 , National Small Industries Corporation Limited Vs. Harmeet Singh Paintal and another, [2010(2) Law Herald (SC) 737] : (2010)3 SCC 330 , Pankaj Badlani and others Vs. M/s. Nectar Lifesciences Ltd. and others, [2012(4) Law Herald (P&H) 3648] : 2013(1) RCR (Criminal) 143, S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another (2005)8 SCC 89 and Anita Malhotra Vs. Apparel Export Promotion Council and another, [2011(6) Law Herald (SC) 4767] : (2012)1 SCC 520 . 8. The learned counsel for the respondent, on the other hand had placed on record copy of the statement given by Dalip Kumar, Director of M/s Bibbey Financial Services and the order passed by the trial Court and had urged that the petitioners had approached this Court by concealing the fact that the company had admitted its liability and had offered to pay the cheque amount but in installments and had handed over three drafts for a sum of Rs.30,00,000/- in favour of the complainant company in the trial Court and had made a statement that in case the whole of the amount was not paid within three months then the amount already given shall be forfeited and he would be liable for legal consequences. It was urged that when the party approaches the High Court, it is expected that they should clearly disclose all the facts and there should be no suppression. It was urged that respondents no.2 to 4 are father and sons and they have not mentioned anywhere in their petition that they had either resigned or were sleeping partners and were not concerned with the business of the company and have chosen to remain silent. It was urged that when the company’s liability has been admitted and had handed over three drafts, they cannot dispute their liability and say that it was a cheque for security. It was urged that when the company’s liability has been admitted and had handed over three drafts, they cannot dispute their liability and say that it was a cheque for security. It was urged that the petitioners have relied upon a certificate issued by the postman that he had delivered the notice on a certain date which is a matter of trial and will have to be proved as it is not a public document and it is a question of fact. It was urged that when the notice was received with a Regd. A.D. card, it bore only the signatures and purposely the date was not put. It was urged that they had specifically pleaded that these persons were directly involved and were responsible for the affairs of the company and the requirement of law is that there should be specific averments. It was urged that no person can be coerced or browbeaten to make a statement and it was a bailable offence and bail was granted and the respondents voluntarily made the offer and had come prepared to pay and had brought three drafts with them which shows the falsity of the submissions and the argument raised on behalf of the petitioners be rejected. It was urged that a composite prayer has been made and the petitioners want even a person who had signed the cheque to be relieved. It was urged that a question would arise that if there is an admission whether they can challenge that later. It was contended that K.K. Ahuja Vs. V.K. Vohra, [2009(4) Law Herald (SC) 2621] : (2009) 10 SCC 48 case is referred to in National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal and another, [2010(2) Law Herald (SC) 737] : reported in (2010)3 SCC 330 and has been approved and the facts in National Small Industries Corporation’s cases were different and are distinguishable. It was urged that the Hon’ble Apex Court in Harshendra Kumar D. Vs. Harmeet Singh Paintal and another, [2010(2) Law Herald (SC) 737] : reported in (2010)3 SCC 330 and has been approved and the facts in National Small Industries Corporation’s cases were different and are distinguishable. It was urged that the Hon’ble Apex Court in Harshendra Kumar D. Vs. Rebatilata Koley and others, [2011(2) Law Herald (SC) 839] : (2011) 3 SCC 351 had held that the consideration of defence at prima-facie stage by the High Court under the inherent power were not absolutely barred and a complaint can be quashed if the material relied upon by the accused is beyond suspicion and is in the nature of a public document but in this case, the petitioners have come up with a certificate issued by a postman which would have to be proved and all these pleas will have to be raised during trial and the petitioners have not been able to show that the notice had been received by then on 01.06.2010. Reference was made to an unreported judgment of Delhi High Court titled Krishna Murari Lal Vs. IFCI Factors Ltd. in Crl. M.C. 3937/2012 decided on 27.11.2012. 9. So far as the first issue raised by the petitioners is concerned, one of the petitioners had surrendered before the trial Court and had made an oral request for bail which was allowed. He did not have any surety and was released on personal bonds as he had brought along with him three drafts of Rs.30 lacs to pay to the complainant. It would be relevant to refer to the statement made by Dalip Kumar, Director of the company and it reads as under:- “Stated that I am ready and willing to effect compromise the matter with the complainant company after admitting the liability on behalf of accused company. I am ready to pay the cheque amount within three months. I am paying a sum of Rs.30 lakh by the demand draft nos.318460, 318462 and 318463 dated 25.09.2010 in favour of complainant company. In case, I do not fulfill the commitment as agreed today the whole of the amount already given shall be forfeited and I shall also be liable for legal consequences. The photocopy of the same is placed on record.” 10. The above would show that a director of the company appears before the trial Court and admitted the liability of the company. The photocopy of the same is placed on record.” 10. The above would show that a director of the company appears before the trial Court and admitted the liability of the company. Demand drafts dated 25.09.2010 prepared 2 days prior to the date fixed in the Court were handed over in the Court. For them to say that the statement was made under threat and coercion and the cheque in question was given only towards security cannot be accepted. The statement was given by the director and he had admitted the liability of the company. Therefore, it cannot be said at this stage that the cheque was towards security. The fact is disputed and debatable and it is the matter which will have to decide at the trial and the complaint cannot be quashed. 11. With respect to the next argument, the petitioners had not pressed their arguments seeking compliance of the provision contained in Section 202 Cr.P.C. Even otherwise, the Magistrate in this case had conducted an inquiry prior to the issuance of summons as envisaged under Section 202 Cr.P.C. and the plea is not available to the petitioners. 12. With respect to the third contention of filing the complaint before the expiry of 15 days is concerned, it is again a matter which will have to be adjudicated by the trial Court. At this stage, the petitioners have not placed any document which is in the nature of a public document or any material which is beyond suspicion of doubt which can be looked into by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C. It is fairly settled that it is not for the High Court to consider the defence of the accused or embark upon an inquiry in respect of the merits of the accusation. However, if in appropriate case if on the face of the document which is beyond suspicion of doubt and has been placed by the accused and the accusations do not stand then it would be travesty of justice if the accused is relegated to trial or is asked to prove his defence before the trial Court. The High Court in order to promote justice and to prevent injustice or abuse of process can look into material which has significant material on the matter at the prima-facie stage. The High Court in order to promote justice and to prevent injustice or abuse of process can look into material which has significant material on the matter at the prima-facie stage. But in this case, the document relied upon by them is not a public document and the argument has no substance and it will have to be proved during trial. 13. Now, coming to the next contention, the argument put forth on behalf of the petitioner was that there was no specific allegation as to how the directors of the company were responsible as there was no specific averment. The counsel for the petitioners had submitted that the person who is responsible for the conduct of the business of the company will have to face the trial but persons who are merely holding a post in the company and are not incharge or responsible for the conduct or the business of the company should not be asked to face trial specially when the complainant does not specifically aver. The counsel for the petitioners had referred to the principles laid down in National Small Industries’s case (supra) which are as under:- (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) The person sought to be made liable should be in-charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. 14. In National Small Industries’s case (supra), the Hon’ble Apex Court had referred to K.K. Ahuja’s case (supra) wherein it was held:- “Therefore, the averment in a complaint that an accused is a Director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him.........” 15. The petitioners had relied upon a case, Anita Malhotra Vs. Apparel Export Promotion Council and another, [2011(6) Law Herald (SC) 4767] : (2012)1 SCC 520 , but the judgment is of no help as the facts were entirely different there. The petitioner had approached the High Court for quashing of the criminal complaint filed under Section 138 of the N.I. Act. She was a Non-Executive Director on the Board of the Company. She had resigned as a Director in the company in 1998 and the necessary information under statutory Form 32 was filed with the Registrar of Companies. The company had issued a cheque which was dishonored. A notice was sent to the accused persons who were incharge and were responsible to the company for the conduct of its business at the time the offence was committed. On receipt of notice, the petitioner sent her reply that she had resigned as a Director way back in 1998 and the reply was suppressed by the complainant while filing the complaint. The petition filed under Section 482 Cr.P.C. was dismissed by the Delhi High Court. On receipt of notice, the petitioner sent her reply that she had resigned as a Director way back in 1998 and the reply was suppressed by the complainant while filing the complaint. The petition filed under Section 482 Cr.P.C. was dismissed by the Delhi High Court. An appeal was preferred in the Hon’ble Apex Court and it was held that the certified copy of the annual return and Form 32 furnished with the Registrar of Companies was acceptable material and ought to have been considered while exercising jurisdiction under Section 482 Cr.P.C. 16. In the case in hand, the petitioners failed to respond regarding their position in the company in their reply to the notice. They have chosen to be silent in this regard even in their petition. It is not their case that they had resigned or were not concerned with the affairs of the company. The complainant had specifically averred in para no.3 of the complaint that all the accused were responsible for the day-to-day conduct, affairs and the business of the company. The complainant had sent a notice specifically mentioning about the liability of the petitioners being the Managing Director and Director and the authorized signatory of the company. The petitioners have not placed any document to show that anyone of them had resigned from the post of the Director. They have not filed copy of any resolution of the Board or Form 32 filed with the Registrar of Companies. The burden is on the Board of Directors or the Officers incharge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, I am satisfied that it is a case where the contentions sought to be raised by the petitioners can only be dealt with after the conclusion of the trial. 17. In this case, the fact is that the petitioners had concealed material facts while approaching this Court. Reading the complaint as a whole, I am satisfied that it is a case where the contentions sought to be raised by the petitioners can only be dealt with after the conclusion of the trial. 17. In this case, the fact is that the petitioners had concealed material facts while approaching this Court. There was not even a whisper that one of the directors had gone to the trial Court with three drafts for a sum of Rs.30 lac and had admitted the liability of the company. It amounts to suppression of fact. The argument that statement was made under pressure is not believable. The petitioners had been summoned in a case which is bailable. The drafts were got prepared two days before the date fixed in the Court. 18. In view of the above, it is found that it is not a fit case for exercising the jurisdiction under Section 482 Cr.P.C. for quashing the complaint. The petition is dismissed. ---------0.B.S.0------------ —————————